ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM (Doc. 1) THIRTY-DAY DEADLINE
Plaintiff Curtis Thompson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The action was filed on April 3, 2009, in the Eastern District of California. An order to transfer to the Fresno Division was entered on April 17, 2009. Plaintiff is currently incarcerated at the California Medical Facility, Vacaville, California.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C § 1915(e)(2)(B).
In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
"[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability... 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).
II. Complaint Allegations
The incidents alleged in the complaint occurred while Plaintiff was housed at the California Substance Abuse Treatment Facility in Corcoran, California. On June 9, 2006, Plaintiff was examined by Defendant Low for a spider bite on his penis. Defendant Low prescribed an antibiotic ointment which Plaintiff alleges he was never provided. On June 11, 2006, a registered nurse ("RN") examined the area, which was inflamed, and confirmed that it was a spider bite. The RN contacted Defendant Low, who approved antibiotic medication being issued. Plaintiff was given the antibiotics. (Doc. 1, Comp., § IV.)
At an unspecified time, Plaintiff alleges he requested that he be given the ointment prescribed by the doctor, but "[t]he MTAs each shift claimed there was no paperwork on [him] or the ointment." (Id.) Plaintiff alleges that the reason that MTAs were unable to find his paperwork is that the health care request form, CDC 7362, is to be a triplicate form. (Id.) The triplicate form is not always available and inmates are forced to use a photocopy of the form. Plaintiff claims "[t]his makes it possible for [California Department of Corrections and Rehabilitation ("CDCR")] staff to discard convienient [sic] for CDC[R]. I feel this is the reason my medical records concerning the ointment prescription and the spider bite have disappeared." (Id., p. 5.)
Plaintiff names Defendants Dr. Kenneth Low, MTA Racey, and CC2 Edmond. He is seeking financial compensation and "constant availability of triplicate CDC 7362 forms." (Id., § V.) For the reasons stated below, Plaintiff has failed to state a cognizable claim.
[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show "deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "a 'serious medical need' by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).
Deliberate indifference is shown where there was "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and the indifference caused harm. Jett, 439 F.3d at 1096. "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he could make an inference that "a substantial ...